Christie's battle against housing council goes before high court today

Governor Christie’s long and contentious battle to weaken New Jersey’s strict affordable housing requirements will reach a crucial moment today when the state Supreme Court considers whether to allow him to unilaterally abolish the agency that enforces housing rules.

Not only do advocates fear Christie will use the opportunity to undermine rules that require towns to build housing for low-income residents, they say it would set a dangerous precedent and give New Jersey’s governor, viewed as one of the most powerful in the country, even more control over state government.

Critics plan to argue that Christie could gain control over dozens of currently independent state agencies that oversee everything from enforcing campaign finance laws to development in the Highlands.

The issue of affordable housing in New Jersey, the nation’s most densely populated state, has been contentious for decades, fought as much in political campaigns large and small as it has in the courts since a series of landmark rulings beginning in the 1970s.

Christie campaigned on a promise of relaxing New Jersey’s strict affordable housing rules in an election where he also targeted the state’s judiciary and its rulings on issues such as affordable housing.

In June 2011, Christie issued an order abolishing the Council on Affordable Housing and put the state commissioner of community affairs, his political appointee, in charge.

Though abolishing the council wouldn’t change New Jersey’s tough housing regulations outright, it would make it easier for Christie to subvert them and deny vulnerable New Jerseyans a voice in deciding affordable housing policy, a coalition of affordable housing groups argued in court filings.

Several members of the council’s 12-member board represent towns, developers and low-income and disabled residents — groups that have all criticized the administration’s housing policies in the past.

While it’s not known how many projects are being delayed because of the uncertainty surrounding the council’s future, Michael Cerra, a senior legislative analyst for the New Jersey State League of Municipalities, said it has slowed development across the state.

The council, which approves towns’ development plans for compliance with affordable housing regulations, hasn’t met in nearly a year, leaving many plans in limbo. Uncertainty over Fort Lee’s housing obligations, for instance, has tied up a plan to put 900 residential units on a long-vacant downtown plot in litigation.

Christie has said a state law, known as the Reorganization Act, gives him the authority to streamline state government and he has argued the move will allow for more efficient enforcement of the state’s complicated set of housing regulations.

Yet critics plan to argue the order was an end-run around stalled negotiations with the Democrats who control the Legislature on a new housing law. Critics say further that the move, if successful, would fundamentally alter the balance of power in a state that already endows its governor with expansive authority.

“The governor doesn’t have the power to bypass the Legislature and unilaterally change the law,” said Adam Gordon, an attorney for the Fair Share Housing Center, which sued to save the council.

Independent boards are meant to be insulated from political pressure. Christie’s interpretation of the law would allow a governor to abolish any independent agency — like the state Ethics Commission, Election Law Enforcement Commission or Highlands Commission — at any time and give its job to a political appointee, Gordon argued.

“Any time that any member of any of those agencies made a decision, they would be looking over their shoulder,” Gordon added.

An appellate panel in March largely agreed, reinstating the council and saying Christie was trying to encroach on the Legislature’s powers by unilaterally abolishing the agency. The administration appealed to the Supreme Court, which agreed in October to hear the case.

Christie’s attempt to eliminate the housing agency came several months after negotiations with legislative Democrats on a bill that would replace it foundered over differences on how strict new affordable housing rules would be. The council has come under criticism for failing to implement a set of regulations first due out in 1999, leaving development projects across the state in uncertainty.

The state Department of Community Affairs, which has been put in charge of affordable housing by the Christie administration, declined to comment.

For its part, the administration has argued in legal filings that the Reorganization Act has been used by previous governors to streamline state government, pointing to Gov. Christie Whitman’s transfer of the state’s utility regulator to the Treasury Department.

Abolishing the Council on Affordable Housing would, in the same way, enable better enforcement of the state’s housing laws by “eliminating a costly and burdensome regulatory agency,” it added.

The lower-court ruling came as Christie was publicly mulling using the Reorganization Act to dismantle the University of Medicine and Dentistry of New Jersey and merge Rutgers University’s Camden campus with Rowan University. After a backlash from Rutgers, Christie worked with lawmakers to craft a different plan that preserved Rutgers-Camden.

Christie, who has promised to “gut” the council, has long criticized a series of state Supreme Court rulings — collectively known as the Mount Laurel doctrine — that require towns to permit low-income developments in their borders. He has frequently cited them as an example of judicial activism and used them as a cornerstone of his vocal campaign against the judiciary.

Though Christie has said his two current nominations to fill vacancies on the Supreme Court didn’t have to pass an ideological litmus test to be considered for the bench, Senate Democrats refused to confirm two of his previous nominees to the court — in part because of concerns over their independence and fears they’d disrupt the political balance on the bench.

The seven-member court, for its part, heard arguments in November about a related affordable housing case concerning the rollout of a long-delayed set of affordable housing rules. An appellate panel decided the rules, developed across several administrations, allowed towns to evade their housing obligations. And activists, as well as the New Jersey State League of Municipalities, joined together in criticizing the rules as unfair and riddled with factual errors.

The league, a traditional opponent of Fair Share Housing Center, has again teamed up with the group in a part of the case seeking to stop the state’s seizure of $140 million that towns have set aside in trust funds for local affordable housing projects.

Christie wants to use the money to balance a state budget that is facing a significant shortfall and says a law signed by Gov. Jon Corzine gives him that authority. Towns collect the money from developers and use it to finance affordable housing construction.

The council hasn’t met since 2011.

“It’s important that funds that are collected locally are used locally,” said the league’s Cerra.

An appellate panel stopped the seizures in August, and a third affordable housing case that deals more directly with the issue is still being heard by the Appellate Division.